Commerce Clause
A note on the commerce clause
After hearing an argument in the Supreme Court, a spectator writes:
"According to the construction now contended for, and what is more than probable will be supported by the Supreme Court, the states can do nothing, which it is not in the power of Congress to regulate; and there is scarcely any change they can can act upon at all – the trade, or commerce, being helpful to the regulation of Congress, is supposed to draw after it almost all power of regulation."
The surprising thing is that this was written in 1824, and the argument was in Gibbons v. Ogden.
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Interesting Montana bill
A bill has been introduced in Montana to declare that firearms made and kept there are not subject to federal control. Two thoughts:
1. I think ATF takes the position in prohibited person cases that a gun must at least have moved in interstate commerce at some time (shown by proof it was manufactured out of state). That may be because the statute requires a link to interstate commerce for these cases; ATF might contend that all other federal restrictions still apply to a gun made in-state.
2. The value of a state law declaring this ... hmm... normally, you'd say not a lot. If it's within the commerce power, it doesn't matter that a state declares that it's not. But in the Lopez case, as I recall, the Court made a big affair of schools traditionally being a state matter, and that states had their own laws regulating gun possession near schools. I couldn't see the relevance there, either (if it's in or affecting commerce, what matters it that states also regulate it, or the commerce relates to traditional state domains? It's either in or affecting commerce, or it's not). So perhaps such a state law would have some weight in the Supremes.
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The herpes theory of commerce clause jurisprudence
The Volokh Conspiracy has an interesting posting here on the "herpes theory" -- namely, if an article has EVER moved in commerce, Congress can regulate it thereafter -- like herpes, once it's got it, it has it forever.
It cites to a 10th Circuit case that essentially recognizes that the Supreme Court, in a felon in possession case many years ago, endorsed that for the Gun Control Act -- it is sufficient to prove that a felon's gun at some point had moved in commerce. (BTW, it was a terrible Burger decision, that misread the statute in several ways. The statute, on its face, did not bar the conduct involved, but the court made it applicable -- if Congress didn't draft a law the way the Supremes felt it should have been drafted, they were going to correct that). The 10th Circuit noted that this approach to commerce couldn't be reconciled with post-Lopez rulings that say the commerce clause must be met in one of three ways, none of them including "if it has ever moved in commerce." But, the Circuit concludes, Lopez and later cases never overruled the earlier decision, and if the two groups of caselaw are to be reconciled, that's a job for the Supreme Court.
UPDATE: link fixed.
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'Interstate commerce" and the Gun Control Act
There are a number of court decisions that basically extend GCA 68 to the outermost constitutional limits of the commerce power, to the point where you begin to wonder whether the Court regards Congressional action as irrelevant to the statute. E.g., the Supreme Court held in one case that the ban on felons possessing "in" commerce or receiving a gun that had ever travelled in commerce extended to a defendant who had *received* before he became a felon (thus no violation) and thereafter possessed, but not in commerce (no violation). It simply said that Congress had meant to extend its powers to the limit of the Commerce Clause... presumably since Congress COULD have written it possessed a gun that has ever travelled in commerce, that conduct was illegal, even though Congress didn't write the statute that way.
I've had two thoughts on this.
1. Congress did *not* try to write to the outer edges of the commerce power. Not only are there the limited uses of the power above, there's also a definition of interstate commerce in GCA itself. 18 USC 921(a)(2) provides that commerce "includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State." The exclusion of commerce that only coincidentally passes through another state is not found in the general definition of commerce for most Title 18, i.e., 18 USC 10. And it's hardly required by caselaw.
2. Since the commerce nexus is an element of the crime, it must be decided by the jury. If you give jury instructions based directly on the statute, a person in the situation of Dr. Emerson (not a prohibited person when gun was received, became one later while in possession) wins if the jury follows the statute. So what does a court do? Add a jury instruction that amounts to "OK, you've heard the statute. You are instructed that the Supreme Court has said the statute doesn't mean that, but rather means ... " whatever. That would not only be rather awkward, but comes rather close to a directed verdict for the prosecution.
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Symposium on Raich (medical marihuana case)
Lewis & Clark Law Review has a symposium issue on Raich and the Commerce Clause. It's online, and contributors include Randy Barnett, Ann Althouse, Glenn Reynolds & Brannon Denning.
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Judge Roberts on guns and interstate commerce
AP reports that Roberts was questioned by Diane Feinstein relating to the Gun Free School Zones Act, and responded that the problem had been that the Act had no jurisdictional requirement (i.e., a provision stating that it only applied if the possession had some specified link to interstate commerce) but that that would be easily fixed legislatively (Feinstein cuts him off, but he seems to have started to say, since guns move in interstate commerce).
As I recall, Lopez did mention the lack of a jurisdictional requirement, but concluded that wasn't the key. Rather, it was that possession simply didn't affect commerce, period. And it suggested pretty strongly that the fact a gun had once moved in commerce wasn't enough of a link.
Humorous note: Feinstein apparently has forgotten that Congress re-enacted the Act, after it was stricken, adding a jurisdictional element -- that the gun has "moved in or otherwise affected" commerce. As noted above, moved in is probably invalid under the Lopez case. But it is funny to see a Senator talking about doing a legislative fix and forgetting that she's already done that.
(Transcript of questioning follows below)
UPDATE: Dave Kopel has some interesting observations regarding Robert's other comments on the interstate commerce power. On this issue the judge (whose caselaw suggested a desirably less-than-all-encompassing view of that power, does seem to be backtracking.
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Interesting district court case on commerce
From Bardswell's webpage on caselaw comes an interesting case that raises an issue I've posed before....
Federal law makes it illegal for a prohibited person to "receive" a gun that has ever moved in interstate commerce, or to "possess" a gun in or affecting commerce. So what happens when someone receives a gun, later becomes a prohibited person, but continues to possess it? He didn't receive the gun while being a prohibited person, so the first doesn't apply. He does possess it after being prohibited, but doesn't do it "in or affecting" interstate commerce (unless he takes it on a trip, or sticks up a trucker). There is some Burger court caselaw that says just possessing a gun that has ever moved in commerce is enough, but (1) that is NOT what the statute says and (2) that flies in the face of Lopez and other recent decisions that indicate commerce is, well, commerce.
The district court here had the judicial gonads to face the issue and say the statute means what it says and the earlier USSC caselaw simply is no longer valid.
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Interesting article on Lopez and Commerce Clause
Interesting article by Prof. Glenn Reynolds and Brannon Denning....
"Like Akira Kurosawa's 1950 film Rashomon, in which four witnesses to a brutal crime relate four different accounts of the same event, in the five years since Lopez was decided, lower courts have interpreted Lopez so differently that one wonders whether they all read the same opinion. Of course they all did, which raises interesting questions about the majority opinion itself, and the nature of contemporary Supreme Court decisionmaking generally, which is discussed below. "
(Prof. Denning has done similar analyses of US v. Miller, and how lower courts resisted and subverted its ruling). {in response to comment, Denning's article can be found here.
BTW, blogging will be light for the next week, as I'm off doing booksignings in PA. First one is Wednesday, 7 PM at the Borders in Wynnewood PA, a Philie suburb. Back on line next Tuesday for sure.
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Judge Roberts and the Commerce Clause
While the Supreme Court nominee has never said anything regarding the Second Amendment, there seems to be some hope that he views the Congressional power over interstate commerce as less than unlimited. In he dissented from a denial of rehearing en banc, arguing that there was a Commerce Clause problem with applying the Endangered Species Act to forbid a "taking" of an endangered toad within a State. (It was an "incidental take," where a developer wanted to build on a parcel and the indirect effect of that might be death of some of the toads).
(Roberts also shows a bit of wit, referring to "regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California")
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Fifth Circuit Commerce Case
The Supremes just denied cert. in an interesting Fifth Circuit commerce clause case. The panel opinion is here and the opinion of six judges dissenting from denial of rehearing en banc is here. (both in .pdf)
Facts: a landowner wanted to develop land on which there were caves whose pools held critters protected by the Endangered Species Act. The ESA prohibits "taking" such, which includes killing or harming them by development. The landowner challenged this as applied (i.e., as applied to this one situation) as beyond beyond Commerce Clause powers. The panel opinion upheld the statute as applied.
The panel opinion does a great job of laying out standards, but I agree with the en banc dissent that, having laid them out, it applies them in a contradictory fashion. The two key issues revolve around "aggregation" -- when can Congress argue that while the particular activity at issue doesn't sufficiently affect commerce, all activities of this type in aggregate would.
The panel lays out two criteria for aggregation:
1. The regulated activity must be commercial in nature. Noncommercial acts (usually) cannot be aggregated. (US v. Lopez -- possessing a gun in a school zone is noncommercial and cannot be aggregated). The panel recognizes that the focus must be upon the regulated activity (here, taking cave shrimp) and not upon its motivation (to develop the land). But then the panel holds that the ESA can apply because the majority of takings covered by it will have an economic motive. [Apart from the fact that this contradicts the standard it just laid out, this is essentially aggregating all conduct regulated by the statute in order to decide whether aggregation is in order].
2. Regulation of the particular conduct must be "essential" to the entire regulatory scheme. (Example: the medicinal pot case, and the argument that allowing medicinal pot would enable people to undercut the entire regulation of marihuana). That's hard to see in this case. Allowing this landowner to nuke some cave shrimp would hardly lead to wholesale evasion of the ESA. But the panel treats ESA as an plan to conserve all listed species, and argues that allowing extinction of one species would undercut that. Again, the ruling contradicts the standard just laid out. It's hard to see how any situation could fail this "essential to the regulatory scheme" criteria
The panel opinion gives great insight into the aggregation principle -- unfortunately, its holding illustrates that, principles or no principles, the lower federal courts HATE to find anything outside the Commerce Clause power!
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Gonzales v. Raich: Supreme Court rules on Commerce Clause
The Supreme Court ruled today in Gonzales v. Raich, against taking a somewhat narrower (and to my mind, entirely proper) view of the Commerce Clause. The vote was 6-3, holding that it was permissible for federal drug regulations to override California's state law allowing medicinal marihuana, even as applied to patients who grew and consumed their own pot.
UPDATE: Prof. Orin Kerr, at the Volokh Conspiracy, weighs in with an interesting insight. Look upon the Court as nine individuals. Four essentially believe that the Court should stay out of federalism-type issues and believe in a "sky is the limit" reading of the Commerce Clause.
Now, that should mean they lose 5-4 every time. But the other five are somewhat divided. Rehnquist is willing to narrow the commerce clause. O'Connor is focused upon protecting the role of the State (thus likely to vote against a federal statute when it encroaches upon traditional State powers, as opposed to opposing it purely because it seems to exceed federal power). Scalia centers upon textualism (which often, but not always, means a narrow commerce power), Thomas on originalism (which equates to a narrow view of the commerce power). Kennedy, so often the swing vote, is like O'Connor interested in protecting the states, and like Rehnquist in preventing excessive federal power, but is not so sensitive as either of the others.
So in this case the theoretical majority loses Kennedy, who isn't quite willing to go that far, and Scalia, who concurs, mostly in criticism of the dissent. (This might reinforce yet another human aspect of the Court: reportedly Scalia and O'Connor, who wrote the dissent, do not get along at all and rarely join in opinions -- even when they agree, one or the other will write a concurring opinion).
UPDATE This brings to mind a bit of a paradox. The Lopez case referred to the fact that the Gun Free Schoolzones Act only affected small areas (1000' around each school), and lower courts seized upon that to distinguish other laws regulating simple possession of firearms, finding that they did fit under the Commerce power. But isn't that rather like saying that "Congress doesn't have enough power to regulate narrow sets of activities, but does have enough to regulate broad sets of the same activities"? How can an entity have too little power for a small undertaking, yet sufficient power for a larger one?
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GCA 68, the Commerce nexus, and Dr. Emerson
Dr. Tim Emerson, who brought the interesting Second Amendment appeal -- the Fifth Circuit held the Amendment was an individual right, but that the statute in question passed muster -- was on remand convicted.
Question: had he actually violated the Gun Control Act? The charge against him was that he had continued to possess a gun after being subject to a domestic violence restraining order. As the Supreme Court noted in the Lopez case, there are several ways Congress can deal with its Commerce Clause powers/limitations, and the most direct way is to write the required Commerce connection into the statute as an element to be alleged and proven by the prosecution.
The relevant section of the GCA, 18 USC 922(g,) makes it unlawful for a prohibited person (including anyone subject to a restraining order ) "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
Let's parse that.
1. It is illegal to be a prohibited person and to ship or transport a gun in interstate commerce. Emerson hadn't shipped or transported it anywhere after he became a prohibited person, so he's safe there.
2. It is illegal to be a prohibited person and possess a gun in or affecting commerce. Emerson wasn't in interstate commerce at the time, and it's hard to see how the gun in his bedroom affected commerce. (More on this anon).
3. It is illegal to be a prohibited person and to receive a gun which has ever been shipped in commerce. Emerson received the gun -- but he wasn't a prohibited person at the time he did so. So, again, he seems home free.
This isn't a constitutional issue. It's a simple question of the face of the statute and what Congress chose to criminalize. For whatever reason, it chose a different Commerce nexus to define each prohibited act, and Emerson's actions appear to have violated none of the statutory provisions.
So how could he have been convicted?
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Bumper crop of Commerce Clause cases?
A recurring issue in firearms cases (see Lopez v. US, Bass v. US, etc.) is whether Congress has exceeded its constitutional power to regulate interstate commerce when it criminalizes acts such as simple possession of a firearm within a single State.
The U.S. Supreme Court has just accepted its second case this term involving commerce clause issues. Cutter v. Wilkinson (03-9877) involves the Religious Land Use and Institutionalized Persons Act, which requires States to make certain accomodations for religious practices for prisoners, and is based in part on Commerce powers. The 6th Circuit invalidated portions of the Act on First Amendment grounds, but the Commerce issue was also raised at the District Court level and is included in the petition for cert. here's a summary. Oral argument is set for May 27.
The Court earlier accepted certiorari in Ashcroft v. Raich (03-1454), which challenges the federal Controlled Substances Act as applied to medicinal marihuana grown and consumed in a single state, as authorized by state law. Summary. Raich was argued November 29, 2004, by none other than Second Amendment author Prof. Randy Barnett.
Both cases should test the Court's ideological impulses, since invalidating the statutes would be an appealing result for the liberal wing (which on the other hand favors a broad reading of Commerce powers) and an appalling result for the conservative wing (which generally favors a narrower reading of those powers).